5 F. 521 -

5 F1d 521

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Case Text

HAYES V. LETON.

"

521

HA,YES.V,. LETON.

(UVrcuit (JoUrt, E. D. New York.

January 22,18&1.)

1.

BUIT ON PATENT-ABANDONMENT OF DEFENCE-EFFECT OF DECREE.

A decree in favor of the plaintiff, in a suit founded on a patent, which was reached llecausethe defendants abandoried the d'efenceof the suit and allowed the decree to be entered without objectionartd withoilt a hearing before the court, is not sufficientgrdunduppn which to grant a preliminary injunction in a suit ,in another district and against other parties, on the same pat. ent. A decree obtained under sucbcircumstances can have no greater effect than to show ari acquiescence in the, plaintiff's claim of right by the parties to the former auit.
"

, , J. H. Whitelegge, for plaintiff. G. G. Frelinghuysen, for defendant. BENEDICT, D. J. This cause comes before the court upon a motion for a preliminary injunction to restrain the defendant, during the pendency of this suit, from making a certain form of skylight, which the plaintiff insists the defendant is now making, and which the plaintiff claims to be an infringement upon certain patents owned by the plaintiff and forming the basis of this suit. The ground upon which the application rests is that the acts of infringement are not denied in the answer, and that the validity of the plaintiff's patents has been upheld by a final decree rendered by the circuit court of the United States for the southern district of New York, in an action there brought by this san:e plaintiff upon these same patents against August Erickson and John H. Gibson. The defendant insists that the acts of infringement are denied by the answer, and that the decree upon which the plaintiff relies was the result of collusion or agreement tween the parties, and does not justify an assumption, upon a motion like the present, that the patents sued on are valid. Passing the question as to the construction to be put upon the answer, it is sufficient for this occasion to say that the circumstances under which the decree 'of the circuit court for

In Equity.

I"

522

FEDERAL REPORTER.

the southern district of New York was made were such as to deprive that decree of any. greater effect than as evidence of an acquiescence in the plaintiff's claim under these patents by the particular theJ,'e sl1ed.FOJ,' that decree was in substance a decree by default. In point of fact, no opposition was made to its entry'; no contest \vas had before the court; and it is plain to see that, the decreEil was because of an understanding .between the parties that I contest should cease, and 'not because,the court had examined the plaintiff's patents and found tl;wrilJo be valid: Treating the decree relied >on by the, plaintiff as no more than evidence that the defendants in that suit acquiesced in the plaintiff's claim under these patents, 'it is manifest that sufficient ground upon which to grant a preliminary injupcThe motion is the!Jfore tion has not been made to denied.

ord, with to be regulated by law, (article 7, H rand 12;"'i!.nd'by statth'e'(Civ.Code, t869jri has the exclusive power to grant l'ettcrsdfadm1nistrat:ion upon tbe' estate of a persOnwho&t imilie'dil\t:eh'befo're h'is'dcathwasan inhabitant of'thecounty. Held, (It that' d'edree of the county court of Multnomah county, granting letters to D. upon the estate of P., bJwhlch it appears to have been adjudged by said court, upon a proper petition, that P: was an inhabitant of the county at or iiilmcdiately bMore his death, cannot be questioned the grol.1nd ,that P. was not. jn sHcP j ,,(2) t4\!<tsl!otd cOl1rt having",geullral jurisdictioll ,0f the of upon the vacant, estate of.. a deceased 'person---:lt baa the inquire and determine whether,' in'tMi particular case, the , I",as an inhabitant Qf the cQuiltyor not, and that cit&. decision upon the is except,upqn appeal; anq. (3)thatasubseq\lent by the couniy of aiJ,otper county, granting lette1'!l o(ad, ministration upon the 'same eat ate to H.; while the first fUll force and e1llect, is null and void.' ,: '".;' '

Contributory negligence is matter of' defence,.Ii'lia the·;burdenof R).'oQf is uvon, the defendant to establish it ; an.d..drunkeuness is not . per sucJ;1 negligence, but only more or. less eVidenCe of it; according . , ,, to the circunistances. -See ante, 75.